98-163 A
February 26, 1998
CRS Report for Congress
Received through the CRS Web
The Law of Church and State: Public Aid to
Sectarian Schools
David M. Ackerman
Legislative Attorney
American Law Division
Summary
The Supreme Court has held that private sectarian schools have a constitutional
right to exist. But it has also held that the establishment of religion clause of the First
1
Amendment imposes constraints on the extent to which such schools can receive public
assistance, particularly at the elementary and secondary school level. In a number of
cases over the last fifty years the Court has had to determine the constitutionality of
particular forms of public aid to sectarian schools and their students. This report gives
an overview of the standards established by the Court in these cases and briefly
summarizes its decisions on particular categories of aid, both at the elementary and
secondary school level and at the college level.2
Overview
The First Amendment provides in pertinent part that "Congress shall make no law
respecting an establishment of religion ...."3 The Supreme Court has construed that
clause to mean that government cannot directly sponsor or finance religious instruction
or indoctrination and that public aid benefiting sectarian institutions must be "secular,
neutral, and nonideological." As a consequence, a critical issue with respect to th
4
e
constitutionality of public aid programs benefiting religious schools has been the nature
1 Pierce v. Society of Sisters, 268 U.S. 510 (1925).
2 For a fuller discussion of the Court's decisions concerning public aid to sectarian schools
and related doctrinal developments, see CRS, The Law of Church and State: Developments in
the Supreme Court Since 1980 (1998) (Report No. 98-65A).
3 The First Amendment has been held to apply to the states as well as to the federal
government. See Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise clause) and
Everson v. Board of Education, 330 U.S. 1 (1947) (establishment clause).
4 Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).
Congressional Research Service ˜ The Library of Congress

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of the schools benefited, i.e., whether the schools are predominantly secular or pervasively
religious. If they are the former, then public aid to their secular functions has been found
not to pose a serious constitutional problem. But if they are the latter, public aid has been
held to be substantially constrained.
Sectarian elementary and secondary schools the Court has repeatedly found to be
pervasively sectarian, i.e., so permeated by a religious purpose and character that their
secular functions and religious functions are "inextricably intertwined." As a result, direct
public aid to such institutions has been held to be limited by the establishment clause
(although not absolutely barred). Sectarian colleges, on the other hand, the Court has
found to be generally secular in nature. As a consequence, much broader forms of direct
public aid have been held to be constitutionally permissible.
This factual distinction between the two levels of education has had less import for
the constitutionality of programs which channel assistance to students or their parents and
only indirectly benefit sectarian schools. Indirect public aid programs such as vouchers
and tax benefit plans must still be religiously neutral and have been struck down by the
Court where their structure and design has virtually guaranteed that the assistance
ultimately flows largely to pervasively sectarian schools. But where the design of the
programs has left the initial beneficiaries a genuine choice about where to use the
assistance, indirect aid programs have been upheld by the Court even though pervasively
sectarian schools have benefited. This has been true at both the college level and the
elementary and secondary school level.5
Specific Decisions Concerning Public Aid to Sectarian Elementary and
Secondary Schools
(1) Bus transportation. In Everson v. Board of Education6 the Court held it to be
constitutionally permissible for a local government to subsidize bus transportation
between home and school for parochial schoolchildren as well as public schoolchildren.
The Court said the subsidy was essentially a general welfare program that helped children
get from home to school and back safely.
In Wolman v. Walter, on the other hand, the Court held the establishment clause to
7
be violated by the public subsidy of field trip transportation for parochial schoolchildren
on the grounds field trips are an integral part of the school's curriculum and wholly
controlled by the school.
(2) Textbooks and other instructional materials. In several decisions the Court
has upheld as constitutional the loan of secular textbooks which are authorized for use in
5 For a fuller discussion of the constitutionality of indirect aid programs, see CRS,
Education Vouchers: The Constitutional Standards (1997) (Report No. 97-50A).
6 Id.
7 433 U.S. 229 (1977).

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the public schools to children in sectarian elementary and secondary schools, and i
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n
Wolman v. Walter, supra, it upheld the inclusion in such a textbook loan program of
related manuals and reusable workbooks. The Court's rationale was that the textbooks are
by their nature limited to secular use and that the loan programs are general welfare
programs that only incidentally aid sectarian schools.
However, in two other decisions the Court has held it to be unconstitutional for other
secular instructional materials, such as periodicals, photographs, maps, charts, films,
sound recordings, projection and recording equipment, and lab equipment, to be provided
either directly to sectarian schools or to sectarian schoolchildren on the grounds such aid
provides substantial aid to the sectarian enterprise as a whole.9
(3) Teachers. In Lemon v. Kurtzman the Court held it to be unconstitutional for
10
a state to subsidize parochial school teachers of such secular subjects as math, foreign
languages, and the physical sciences, either by way of a direct subsidy of such teachers'
salaries or by means of a "purchase of secular services" program. In both instances, the
Court said, the state would have to engage in intrusive monitoring to ensure that the
subsidized teachers did not inculcate religion; and it held such monitoring to
unconstitutionally entangle the states with the schools. Similarly, in City of Grand Rapids
v. Ball11 the Court found the establishment clause violated by a program in which the
school district hired parochial school teachers to provide after-school extracurricular
programs to their students on the premises of their sectarian schools.
But in Agostini v. Felton the Court recently
12
reversed an earlier line of decisions and
upheld as constitutional the provision of remedial educational services to sectarian
schoolchildren by public teachers on the premises of sectarian schools. Earlier decisions
had required such services to be provided off the sectarian school grounds.
13 Similarly,
in Zobrest v. Catalina Foothills School District the Court also upheld as constitutional
14
the provision at public expense under the Individuals with Disabilities Education Act
(IDEA) of a sign-language interpreter for a disabled child attending a sectarian secondary
school. In both instances the Court reasoned that the programs were general welfare
programs available to students without regard to whether they attended public or private
(sectarian) schools.
(4) Tests and state-required reports. In Wolman v. Walter, supra, the Court upheld
as constitutional a program in which a state provided standardized tests in secular subjects
and related scoring services to nonpublic schoolchildren. Similarly, in Committee for
8 Board of Education v. Allen, 392 U.S. 236 (1968); Meek v. Pittenger, 421 U.S. 349
(1975); and Wolman v. Walter, supra.
9 Meek v. Pittenger, supra, and Wolman v. Walter, supra.
10 403 U.S. 602 (1971).
11 473 U.S. 373 (1985).
12 521 U.S. ___ (1997).
13 See Aguilar v. Felton, 473 U.S. 402 (1985); City of Grand Rapids v. Ball, supra; Wolman
v. Walter, supra; and Meek v. Pittenger, supra.
14 509 U.S. 1 (1993).

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Public Education v. Regan the Court upheld a program reimbursing
15
sectarian schools
for the costs of administering such state-prepared tests as the regents exams,
comprehensive achievement exams, and college qualifications tests. In both instances
the rationale was that such tests were limited by their nature to secular use. In the latter
case the Court also upheld as constitutional a program which reimbursed sectarian and
other private schools for the costs of complying with certain state-mandated record-
keeping and reporting requirements about student enrollment and attendance, faculty
qualifications, the content of the curriculum, and physical facilities on the grounds the
requirements were imposed by the state and did not involve the teaching process.
On the other hand, in Levitt v. Committee for Public Education
16 the Court struck
down a program reimbursing sectarian schools for the costs of administering and
compiling the results of teacher-prepared tests in subjects required to be taught by state
law for the reason that the tests might include religious content.
(5) Non-curricular services. The Court has in dicta repeatedly affirmed the
constitutionality of the public subsidy of physician, nursing, dental, and optometric
services to sectarian schoolchildren in sectarian schools,17 and in Wolman v. Walter,
supra, it specifically upheld the provision of diagnostic speech, hearing, and
psychological services by public school personnel on sectarian school premises. In
addition, the Court has repeatedly in dicta affirmed the constitutionality of the public
subsidy of school lunches for eligible children in sectarian schools.18
(6) Maintenance and repair costs. In Committee for Public Education v. Nyquist,
supra, the Court struck down as unconstitutional a state program subsidizing some of the
costs incurred by sectarian schools for the maintenance and repair of their facilities on the
grounds the subsidy inevitably aided the schools' religious functions.
(7) Vouchers and tax benefits. In Committee for Public Education v. Nyquist,
supra, and Sloan v. Lemon the Court held unconstitutional programs which provide
19
d
tuition grants and tax benefits to children attending sectarian schools and their parents.
In both instances the Court found that the benefits of the programs were confined to
children attending private schools, that most of those schools were pervasively sectarian,
and that as a consequence the programs had a primary purpose and effect of subsidizing
such schools.
In two other decisions, however, the Court upheld voucher and tax benefit programs
where the benefits were available to children attending public as well as private schools
or their parents. Mueller v. Allen invo
20
lved a state program giving a tax deduction to the
parents of all elementary and secondary schoolchildren for a variety of educational
15 444 U.S. 646 (1980).
16 413 U.S. 472 (1973).
17 Lemon v. Kurtzman, supra; Meek v. Pittenger, supra: and Wolman v. Walter, supra.
18 Lemon v. Kurtzman, supra, and Meek v. Pittenger, supra.
19 413 U.S. 825 (1973).
20 463 U.S. 388 (1983).

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expenses, including tuition. Witters v. Washington Department of Services for the Blind,21
in turn, involved a state vocational rehabilitation program which gave a grant to a blind
person who wanted to attend a Bible college to prepare for a religious vocation. In each
instance the Court's rationale in upholding the programs was that they were general
welfare programs in which sectarian schools benefited only as the result of the
independent choices of students or their parents.
Specific Decisions Concerning Public Aid to Sectarian Colleges and
Universities
(1) General aid: In Roemer v. Maryland Board of Public Works the Court found
22
a statutory restriction barring the use of the funds for "sectarian purposes" sufficient to
enable it to uphold a program of noncategorical grants to all private colleges in the state,
including ones that were church-affiliated. The Court stressed that the church-related
colleges that benefited were not "pervasively sectarian" and that the aid was statutorily
restricted to secular use.
(2) Construction assistance: In Tilton v. Richardson23 the Court upheld as
constitutional a federal program that provided grants to colleges, including church-
affiliated colleges, for the construction of needed facilities, so long as the facilities were
not used for religious worship or sectarian instruction. The statute provided that the
federal interest in any facility contructed with federal funds would expire after 20 years,
but the Court held that the nonsectarian use requirement would have to apply so long as
the buildings had any viable use.
Subsequently, in Hunt v. McNair24 the Court upheld a state program in which the
state issued revenue bonds to finance the construction of facilities at institutions of higher
education, including those with a religious affiliation. The program barred the use of the
funds for any facility used for sectarian instruction or religious worship.
(3) Vouchers: In two summary affirmances the Court has upheld the
constitutionality of programs providing grants to students attending institutions of higher
education, including religiously-affiliated colleges. Both Smith v. Board of Governors of
the University of North Carolina and
25
Americans United for the Separation of Church
and State involved grants given on the basis of need for students to use in attendin
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g
either public or private colleges, including religiously affiliated ones. In affirming the
decisions the Supreme Court issued no opinion in either case, but the lower courts
reasoned that the religious colleges benefited from the programs only if the aided students
independently decided to attend.
21 474 U.S. 481 (1986).
22 426 U.S. 736 (1976).
23 403 U.S. 672 (1971).
24 413 U.S. 734 (1973).
25 429 F.Supp. 871 (W.D.N.C.), aff'd mem., 434 U.S. 803 (1977).
26 433 F.Supp. 97 (M.D. Tenn.), aff'd mem., 434 U.S. 803 (1977).

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(4) Student publication subsidy: In Rosenberger v. The Rector and Board of
Visitors of the University of Virginia the Court held that it would be constitutional for
27
a state university to subsidize the printing costs of an avowedly religious student
publication. The university made the subsidy available to non-religious student
publications as a way of fostering student expression and discussion, and the Court said
it would constitute viewpoint discrimination violative of the free speech clause of the First
Amendment to deny the subsidy to a student publication offering a religious perspective.
Other Pertinent Decisions
(1) General public services. In dicta in Everson v. Board of Education, supra, the
Court affirmed as constitutional the provision to sectarian schools of such general public
services as police and fire protection, connections for sewage disposal, highways, and
sidewalks. The establishment clause, the Court intimated, does not require that religious
schools be cut off from public services "so separate and so indisputably marked off from
the religious function ...."28
(2) Property tax exemption. Finally, in a case that did not specifically involve a
sectarian school, it might be noted that in Walz v. Tax Commission of New York th
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Court upheld as constitutional an exemption from property taxes for church property. The
Court reasoned that the exemption did not have a primary effect of advancing religion
because it was given to a large class of educational and charitable organizations along
with religious entities.
27 515 U.S. 819 (1995).
28 Everson v. Board of Education, supra, at 18.
29 397 U.S. 664 (1970).

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